EXHIBIT 10.5
IRREVOCABLE PROXY AND VOTING AGREEMENT
IRREVOCABLE PROXY AND VOTING AGREEMENT, dated as of __________, 2002
(this "Agreement"), among Global Energy Group, Inc. ("Global"), a Delaware
corporation; Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, (together "Xxxxxxx"), each an
individual married to the other and with a residence at ___________; Xxxxxxx
Xxxxx and Xxxxx Xxxxx (together, "Xxxxx"), each an individual married to the
other and with a residence at ___________; Xx. Xxxx Xxxxxx ("Xxxxxx"), an
individual with a residence at ___________; and Xxxxxx X. Xxxxxx ("Xxxxxx"), an
individual with a residence at ___________ (each a "Stockholder" and
collectively the "Stockholders"); and Xxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx"), an
individual with a residence at ___________, and Xxxxx Xxxxxx ("Xxxxxx"), an
individual with a residence at ___________.
WHEREAS, Global has entered into separate employment agreements with
Xxxxxxxxxx and Xxxxxx (the "Xxxxxxxxxx Employment Agreement" and the "Xxxxxx
Employment Agreement," respectively, and together the "Employment Agreements");
and
WHEREAS, the parties contemplate that (1) the Certificate of
Incorporation and the Bylaws of Global shall be amended so as to provide for a
staggered board of directors, (2) at all times during their respective terms of
employment with Global, each of Xxxxxxxxxx and Xxxxxx shall be and remain
directors of Global, and (3) at all times during the term of this Agreement, all
directors of Global, other than Xxxxxxx Xxxxx, Xxxxxxxxxx and Xxxxxx, shall be
individuals the nomination and election of whom are supported by Xxxxxxx Xxxxx,
Xxxxxxxxxx and Xxxxxx; and
WHEREAS, as a condition to the willingness of Xxxxxxxxxx and Xxxxxx to
enter into the Employment Agreements, Xxxxxxxxxx and Xxxxxx have required that
each Stockholder agree, and in order to induce Xxxxxxxxxx and Xxxxxx to enter
into the Employment Agreements each Stockholder has agreed, to appoint
Xxxxxxxxxx as their attorney and proxy, in accordance with the terms of this
Agreement, in respect of all the shares of Global's Common Stock, par value
$0.001 per share ("Global Common Stock") now or hereafter owned by the
Stockholders (the "Shares");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE 1
VOTING AGREEMENT AND PROXY OF THE STOCKHOLDERS
1.1 Voting of the Shares. Each Stockholder hereby agrees that during
the period commencing on the date hereof and continuing until the termination of
this Agreement as specified in Article 3 hereof (the "Termination Date"), at any
meeting of the holders of Global Common Stock at which any of the following
matters is considered, however called, or in connection with any written consent
of the holders of Global Common Stock relating to the approval of any of the
following matters, such Stockholder shall vote (or cause to be voted) the
Irrevocable Proxy and Voting Agreement
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Global Common Stock held of record or Beneficially Owned by such Stockholder,
whether heretofore owned or hereafter acquired, (i) for the amendment of
Global's Certificate of Incorporation (the "Charter Amendment") as set forth in
Exhibit A, and for corresponding amendments to Global's Bylaws (the "Bylaws
Amendment"), and to otherwise establish and maintain a board of directors
comprising three classes whose members serve staggered terms of three years each
as contemplated by the Charter Amendment, (ii) for the election of Xxxxxxx
Xxxxx, Xxxxxxxxxx and Xxxxxx as directors of Global, serving respectively in
those two classes of directors whose terms (after being elected in 2002) expire
in 2005, 2005 and 2004, respectively (or, in the event that no persons other
than Xxxxxxx Xxxxx, Xxxxxxxxxx and Xxxxxx are then standing for election as
directors, the classes of directors whose terms (after being elected in 2002)
expire in 2004, 2005 and 2003, respectively), (iii) against any removal of
Xxxxxxxxxx or Xxxxxx from any position as a director of Global, (iv) against any
action or agreement that might reasonably be expected to result directly or
indirectly in the termination of, or a breach of any covenant, representation or
warranty or any other obligation or agreement of Global under, either Employment
Agreement, and (v) against any proposal inconsistent with the foregoing. Each
Stockholder further agrees not to commit or agree to take any action
inconsistent with the foregoing.
For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
1.2 Proxy. Each Stockholder hereby irrevocably appoints Xxxxxxxxxx,
until the Termination Date, as such Stockholder's attorney and proxy, with full
power of substitution, to vote in such manner as Xxxxxxxxxx or his duly
authorized representative shall, in his sole discretion, deem proper and
otherwise act (by written consent or otherwise) with respect to the Shares and
all other securities issued by Global in respect of the Shares, which such
Stockholder is entitled to vote at any meeting of stockholders of Global
(whether annual or special and whether or not an adjourned or postponed meeting)
or consent in lieu of any such meeting or otherwise (i) for the Charter
Amendment and the Bylaws Amendment, and to otherwise establish and maintain a
board of directors comprising three classes whose members serve staggered terms
of three years each as contemplated by the Charter Amendment, (ii) for the
election of Xxxxxxx Xxxxx, Xxxxxxxxxx and Xxxxxx as directors of Global, serving
respectively in those two classes of directors whose terms (after being elected
in 2002) expire in 2005, 2005 and 2004, respectively (or, in the event that no
persons other than Xxxxxxx Xxxxx, Xxxxxxxxxx and Xxxxxx are then standing for
election as directors, the classes of directors whose terms (after being elected
in 2002) expire in 2004, 2005 and 2003, respectively), (iii) against any removal
of Xxxxxxxxxx or Xxxxxx from any position as a director of Global, (iv) against
any action or agreement that might reasonably be expected to result directly or
indirectly in the termination of, or a breach of any covenant, representation or
warranty or any other obligation or agreement of Global under, either Employment
Agreement, and (v) against any proposal inconsistent with the foregoing. This
Agreement confers no other authority to vote on any other matters. This proxy
and power of attorney is irrevocable and coupled with an interest, shall not be
terminated by any act of a Stockholder or by operation of law, by lack of
appropriate power or authority, or by the occurrence of any other event or
events and shall be binding upon all successors, assigns, heirs,
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beneficiaries and legal representatives of such Stockholder. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to the
Shares (and all other securities issued by Global in respect of the Shares)
which such Stockholder may have heretofore appointed or granted, and no
subsequent proxy or power of attorney shall be given or written consent executed
(and if given or executed, shall not be effective) by such Stockholder with
respect thereto. Each Stockholder further agrees not to commit or agree to take
any action inconsistent with the foregoing. The proxy granted hereby includes
the power to call, or cause each Stockholder to call, a special meeting of
stockholders of Global to consider the matters and the transactions referred to
above. The proxy granted hereby is coupled with an interest and is irrevocable
to the greatest extent permissible under applicable law.
1.3 Shares Covered; Pre-Closing Transfer Restrictions. Each Stockholder
agrees that, until the holding of Global's annual meeting of stockholders during
2002 at which the matters referred to in Section 1.1 and Section 1.2 are voted
upon by Global's stockholders, such Stockholder will not, directly or
indirectly, (i) sell, hypothecate, transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift), or create or permit to exist any
security interest, lien, claim, pledge, right of first refusal agreement, charge
or other encumbrance of any nature whatsoever (collectively, "Transfer"), or
enter into any contract, option, put, call or other arrangement or understanding
(including any profit sharing arrangement) with respect to the Transfer of any
of the Shares to any person, except that Cornett, Wiles, Xxxxxx and Xxxxxx each
shall be permitted during such period to Transfer up to, but no more than,
400,000 Shares (meaning that, if each Stockholder Transfers the maximum
permitted amount of Shares, 1,600,000 Shares in the aggregate will have been
Transferred), (ii) trade or take any position, hedge or otherwise, with respect
to the Shares, (iii) enter into any voting agreement, arrangement or
understanding, directly or indirectly, whether by proxy, voting agreement or
otherwise, with respect to any of the Shares or deposit any Shares into a voting
trust or (iv) take any action that would make any of the representations or
warranties contained herein untrue or incorrect or have the effect of preventing
or impeding such Stockholder from performing any of its obligations under this
Agreement. Nothing herein shall prohibit the conversion of the Shares by
operation of law pursuant to a merger, share exchange or other comparable
transaction approved by Global's stockholders.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Xxxxxxxxxx and
Xxxxxx as follows:
2.1 Authority Relative to This Agreement. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly and validly executed and delivered by
such Stockholder and, assuming the due authorization, execution and delivery by
the other parties
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hereto, constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
2.2 No Conflict. The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to such Stockholder or by which any
property or assets of such Stockholder are bound or affected, or (iii) conflict
with, result in any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any right of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or other encumbrance of any nature whatsoever on any
property or asset of such Stockholder pursuant to, any voting agreement,
stockholders agreement, voting trust, trust agreement, pledge agreement, loan or
credit agreement, note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Stockholder is a party (individually or collectively) or by which such
Stockholder or any property or asset of such Stockholder is bound or affected.
2.3 Title to the Shares. As of the date hereof, such Stockholder is the
record and beneficial owner of that number of shares of Global Common Stock set
forth beside such Stockholder's name on Exhibit B attached hereto, which are all
the securities of Global owned, either of record or beneficially, by such
Stockholder. Such Stockholder owns all such shares of Global Common Stock free
and clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on such Stockholder's voting rights,
charges and other encumbrances of any nature whatsoever, and, except as provided
in this Agreement, such Stockholder has not appointed or granted any proxy,
which appointment or grant is still effective, with respect to such shares. Such
Stockholder has the sole or shared right and power to vote and dispose of the
shares of Global Common Stock. None of such shares of Global Common Stock are
subject to any voting trust or other agreement, arrangement or restriction with
respect to the voting or transfer thereof, except as contemplated by this
Agreement.
ARTICLE 3
TERMINATION
This Agreement shall terminate on the holding of Global's annual
meeting of stockholders during 2002 at which the matters referred to in Section
1.1 and Section 1.2 are voted upon and approved by Global's stockholders.
ARTICLE 4
MISCELLANEOUS
4.1 Expenses. Except as otherwise provided herein or in the Employment
Agreements, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
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4.2 Further Assurances. Each Stockholder and Global will execute and
deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
4.3 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
4.4 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, among any or all of
the parties with respect to the subject matter hereof.
4.5 Assignment. This Agreement shall not be assigned by operation of
law or otherwise.
4.6 Obligations of Successors; Parties in Interest. This Agreement
shall be binding upon, inure solely to the benefit of, and be enforceable by,
the parties hereto and their successors, permitted assigns, heirs and
beneficiaries. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
4.7 Amendment; Waiver. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
4.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
4.9 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
reputable overnight courier or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section):
[Insert addresses for notice]
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4.10 Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of Florida, without reference to the
conflicts of law principles thereof.
4.11 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
4.12 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. The signatures of the
parties on this Agreement may be delivered by facsimile and any such facsimile
signature shall be deemed an original.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first written above.
GLOBAL ENERGY GROUP, INC.
By:
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Print Name:
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Title:
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XXXXXXX XXXXX
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XXXXX XXXXX
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XXXXXX XXXXXXX
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XXXXXXX XXXXXXX
Irrevocable Proxy and Voting Agreement
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XX. XXXX XXXXXX
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XXXXXX X. XXXXXX
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XXXXXX X. XXXXXXXXXX
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XXXXX XXXXXX
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EXHIBIT A
TO
IRREVOCABLE PROXY AND VOTING AGREEMENT
Proposed amendments to Certificate of Incorporation and Bylaws:
Article ___ of the Certificate of Incorporation of Global shall be amended to
substantially the following effect:
Article ___
Directors
A. The management of the business and the conduct of the affairs of the
corporation shall be vested in a board of directors.
B. The directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Shares as to
dividends or upon liquidation, shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2003, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 2004, and another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 2005. At each annual meeting
of stockholders following the initial classification and election, the
respective successors of each class shall be elected for three-year terms.
C. The directors of the corporation need not be elected by written
ballot unless the bylaws of the corporation so provide. A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
D. The number of directors of the corporation shall be fixed and may be
changed from time to time by resolution of the board of directors. If the number
of directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible.
E. Any vacancies on the board of directors resulting from death,
resignation, disqualification, removal, increase in the number of directors
constituting the board of directors, or other causes, unless the board of
directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, and except as otherwise provided
by law, shall be filled only by the affirmative vote of a majority of the
remaining directors then in office, or by a sole remaining director, even though
less than a quorum of the board of directors, and not by the stockholders. If
any applicable provision of the General Corporation Law of the State of Delaware
expressly confers power on stockholders to fill such a directorship at a special
meeting of stockholders, such a directorship may be filled at such meeting only
by the affirmative vote of at least
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80 percent of the voting power of all shares of the corporation entitled to vote
generally in the election of directors voting as a single class.
F. Any additional director of any class elected to fill a newly created
directorship shall hold office for a term that shall coincide with the remaining
term of that class, but in no case shall a decrease in the number of directors
constituting the board of directors remove or shorten the term of any incumbent
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
predecessor.
G. Directors may be removed only for cause, and only by the affirmative
vote of at least 50 percent in voting power of all shares of the corporation
entitled to vote generally in the election of directors, voting as a single
class.
H. Notwithstanding the foregoing, whenever the holders of any one or
more class or series of capital stock issued by the corporation shall have the
right, voting separately as a class or series or with one or more such other
classes or series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, removal, filling of vacancies and
other features of such directorships shall be governed by the terms of this
certificate of incorporation (including any certificate of designations relating
to any class or series of capital stock) applicable thereto, and such directors
so elected shall not be divided into classes pursuant to this Article ___ unless
expressly provided by such terms.
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EXHIBIT B
TO
IRREVOCABLE PROXY AND VOTING AGREEMENT
Number of Shares
of Global Common Stock
Stockholder Owned
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Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, JTWROS 1,768,130 shares
Xxxxxxx Xxxxx and Xxxxx Xxxxx, JTWROS 1,768,131 shares
Xx. Xxxx Xxxxxx 3,340,039 shares
Xxxxxx X. Xxxxxx 1,612,450 shares
Irrevocable Proxy and Voting Agreement
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